Citation Nr: 9931981
Decision Date: 11/10/99 Archive Date: 11/19/99
DOCKET NO. 94-13 118 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Seattle,
Washington
THE ISSUES
1. Entitlement to an evaluation in excess of 40 percent for
low back strain, with traumatic arthritis at L4-L5.
2. Entitlement to a total rating based on individual
unemployability.
REPRESENTATION
Appellant represented by: Washington Department of
Veterans Affairs
WITNESSES AT HEARING ON APPEAL
Appellant and spouse
ATTORNEY FOR THE BOARD
Robin M. Webb, Associate Counsel
INTRODUCTION
The veteran had active service from August 1965 to February
1966 and in March 1971.
This appeal arises before the Board of Veterans' Appeals
(Board) from a rating action of the Department of Veterans
Affairs (VA) Regional Office (RO) in Seattle, Washington.
REMAND
The veteran's appeal was first before the Board in February
1997. At that time, it was noted that the record indicated
that the veteran received Social Security Administration
(SSA) benefits. The Board was of the opinion that any
records pertaining to the determination of eligibility for
these benefits needed to be obtained and associated with the
veteran's claims file. In its February 1997 remand, the
Board directed the RO to clarify with the veteran whether he
was in receipt of workers' compensation benefits or SSA
benefits. Based on the veteran's response, the medical
records pertaining to any disability determination were to be
obtained and associated with the claims folder.
The veteran's appeal was returned to the Board in July 1998.
Review of the record at that time indicated that no response
had ever been received from the veteran. Indeed,
correspondence to the veteran had been returned as
undeliverable. The Board discussed the various addresses of
record for the veteran and noted that the veteran's service
organization had never been contacted by the RO as to the
veteran's current address. Accordingly, the Board directed
the RO to contact the veteran's service organization in an
attempt to verify the veteran's current mailing address.
Additionally, the Board noted that the RO had not complied
with all of the development ordered in its February 1997
remand. Unfortunately, the Board did not again direct the RO
to obtain the veteran's SSA records.
To date, the RO has never attempted to obtain the veteran's
SSA records. Admittedly, no response was ever received from
the veteran as to whether he received workers' compensation
benefits or SSA benefits. However, in his VA Form 21-527
(Income-Net Worth and Employment Statement), the veteran
indicated that he had applied for SSA benefits in October
1985. In this instance, VA can obtain these records from SSA
without authorization from the veteran. As such, a response
from the veteran is not necessary. Further, controlling law
holds that VA's duty to assist the veteran in developing
facts pertinent to his claim specifically includes requesting
information from other federal departments or agencies. See
Murincsak v. Derwinski, 2 Vet. App. 363 (1992).
Additionally, such a duty to assist exists regardless of
whether there is ample recent evidence in the extant record
as to the veteran's present level of disability. Id.
Although SSA decisions regarding a veteran's unemployability
are not controlling for VA determinations, this evidence is
relevant to the determination of the veteran's ability to
secure and follow a substantially gainful occupation under
applicable VA legislation. Id. The Board stresses the
possible importance of these records, given that one of the
issues currently for consideration is entitlement to a total
rating based on individual unemployability.
On current review, the Board finds that it afforded the RO
greater discretion in its February 1997 remand as to the
matter of obtaining the veteran's SSA records than warranted
under the law. See Stegall v. West, 11 Vet. App. 268 (1998).
Further, the Board also finds that it did not again direct
the RO, in its July 1998 remand, to obtain the veteran's SSA
records regardless of response from the veteran, or lack
thereof. The Board deeply regrets the delay this action
entails, but this development must be undertaken.
Accordingly, the issues of entitlement to an evaluation in
excess of 40 percent for low back strain, with traumatic
arthritis at L4-L5, and entitlement to a total rating based
on individual unemployability will not be decided pending a
REMAND for the following actions:
1. The RO should obtain the veteran's
SSA records and incorporate them into the
claims file. If no records are
available, as stated by SSA, such
notification should be made part of the
record.
2. Upon receipt of the veteran's SSA
records, the RO should review all of the
records, paying particular attention to
any medical evidence submitted and
concerning the veteran's low back strain
and his unemployability.
3. The RO should then review the
veteran's claim and consider all
pertinent law and regulations, in light
of the veteran's SSA records or
notification that no such records are
available. If the veteran's claim
remains in a denied status, he and his
representative should be provided with a
supplemental statement of the case, which
includes a full discussion of action
taken on the veteran's claim and the
reasons and bases for such action. The
applicable response time should be
allowed. The RO should mail the
veteran's copy of the supplemental
statement of the case to the veteran's
last known address of record.
In taking this action, the Board implies no conclusion as to
any outcome warranted. No action is required of the veteran
until he is otherwise notified by the RO.
The veteran has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
V. L. Jordan
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (1998).